Everly v. Everly et al

Filing 65

MEMORANDUM AND ORDER: Before the court is a question regarding the scope of the Sixth Circuit's remand. The court construes the defendants' recently filed Brief (Doc. No. 63 ) on that issue as a motion for clarification as to the scope o f remand as well as motion for leave to amend both the operative scheduling order and the defendants' Answer. The defendants' request for a clarification of the scope of the proceedings on remand is GRANTED, as follows: the remand was gene ral, and the defendants cannot be deemed to have waived the arguments raised in their Rule 59 motion. The defendants' implicit request to amend the ICMO to extend the deadline for amending pleadings and their request to amend their Answer to add a statute-of-limitations defense based on the 1972 David Frost show are DENIED for the reasons stated herein. Signed by District Judge Aleta A. Trauger on 7/22/2020. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(vh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ISAAC DONALD EVERLY,
Plaintiff,
v.
PATRICE Y. EVERLY, PHILLIP J.
EVERLY, CHRISTOPHER EVERLY,
THE PHILLIP EVERLY FAMILY
TRUST and EVERLY AND SONS
MUSIC (BMI),
Defendants.

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Case No. 3:17-cv-01440
Judge Aleta A. Trauger

MEMORANDUM AND ORDER
Before the court is a question regarding the scope of the Sixth Circuit’s remand. The court
construes the defendants’ recently filed Brief (Doc. No. 63) on that issue as a motion for
clarification as to the scope of remand as well as motion for leave to amend both the operative
scheduling order and the defendants’ Answer. As set forth herein, the court will GRANT the
motion for clarification and DENY the motion for leave to amend either the scheduling order or
the Answer.
I.

BACKGROUND
The Sixth Circuit reversed this court’s grant of summary judgment in favor of the plaintiff

and remanded for further proceedings. The mandate issued on May 26, 2020, and this court
promptly set a new trial date of November 3, 2020. (Doc. Nos. 55, 56.)
Within a month of the issuance of the mandate, the defendants filed a Motion to Set a
Telephonic Status Conference (Doc. No. 58) with the undersigned to discuss three issues that the
parties have not been able to resolve among themselves: (1) the defendants’ position that the

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plaintiff could not “use the statute of limitations as a ‘sword’ to prevail on his affirmative claims”
(id. at 1); (2) the defendants’ position that the proper accrual date for a copyright termination claim
is the effective date of termination; and (3) the applicability of the statute of limitations to the
plaintiff’s claims and whether the defendants needed, or would have the ability, to file a motion to
amend their answer to assert the statute of limitations as an affirmative defense. The plaintiff filed
a Response, clarifying that, although he did not oppose the defendants’ request for a status
conference, his position is that the first two issues referenced by the defendants have been “waived,
which is why the Sixth Circuit refused to consider them on appeal,” and that the third issue—
whether the statute of limitations bars the plaintiff’s claims—has also been waived, not having
been raised before now. (Doc. No. 59, at 1.)
The court conducted a telephone conference with the parties on June 30, 2020 and
thereafter entered an Order directing the parties to brief the question raised by the defendants,
specifically, the scope of issues to be considered following the remand. (Doc. No. 62.) The parties
have now complied. The defendants’ Brief Regarding the Scope of Proceedings on Remand (Doc.
No. 63), in addition to addressing the question framed by the document’s title, requests leave to
amend their Answer. As indicated above, the court construes this request as a motion, even though
the Brief is not designated as such and the proposed amended pleading was not attached to the
Brief. The plaintiff’s Response to Defendants’ Brief (Doc. No. 64), besides continuing to argue
that the scope of the remand is narrow, opposes the defendants’ request for leave to amend the
scheduling order in order to permit an amended Answer.
II.

SCOPE OF ISSUES ON REMAND
The plaintiff moved for summary judgment on all three claims for declaratory relief set

forth in the Complaint. The court granted summary judgment in favor of the plaintiff on Counts I
and III, finding that he had “plainly and expressly repudiated Phil Everly’s claim to joint authorship

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of the Subject Compositions no later than 2011,” as a result of which the defendants’ counterclaim
for a declaration that Phil Everly was an author of the Subject Compositions was time-barred, and
the plaintiff was entitled to summary judgment on his claims of sole authorship. (Doc. No. 26, at
16; see also Order, Doc. No. 27.) The “Subject Compositions” included the songs Cathy’s Clown,
Sigh, Cry, Almost Die, and That’s Just Too Much. The court dismissed Count II as moot in light
of the finding that the plaintiff was entitled to judgment in his favor on Counts I and III. The
defendants sought reconsideration, raising two issues that they had not previously raised: (1)
whether the plaintiff could use the statute of limitations as a “sword” rather than merely a “shield”
and (2) whether the proper accrual date for a copyright termination claim is the effective date of
termination. The court declined to consider the newly raised issues and denied the motion for
reconsideration.
The defendants appealed. In a footnote, the Sixth Circuit affirmed summary judgment in
favor of the plaintiff with respect to his authorship claims to two of the Subject Compositions,
Sigh, Cry, Almost Die and That’s Just Too Much, finding that the defendants had “forfeited any
argument” regarding these two compositions. Everly v. Everly, 958 F.3d 442, 448 n.6 (6th Cir.
2020). In addition, the appellate court declined to consider the same two issues the defendants had
raised in the motion to reconsider, finding that the issues were waived for purposes of the appeal.
See id. at 449 (“Defendants failed to raise the first and third arguments before their Rule 59(e)
motion to reconsider. Accordingly, we do not consider them here.”). Turning its attention to the
substantive issue on the basis of which this court had granted summary judgment, the Sixth Circuit
found that a material factual dispute existed as to whether the plaintiff had expressly repudiated
Phil Everly’s authorship of the composition Cathy’s Clown. It therefore “reverse[d] the district
court’s grant of summary judgment and remand[ed] for further proceedings consistent with this

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opinion.” Id. at 459.
“The basic tenet of the mandate rule is that a district court is bound to the scope of the
remand issued by the court of appeals.” United States v. Campbell, 168 F.3d 263, 265 (6th Cir.
1999). Remands can be general or limited in scope. A limited remand, as its name suggests, limits
the district court’s authority on remand to the issue or issues remanded. Id. (citation omitted).
“General remands, in contrast, give district courts authority to address all matters as long as
remaining consistent with the remand.” Id.
“A limited remand must convey clearly the intent to limit the scope of the district court’s
review.” Id. at 267. Thus, to impose a limited remand, the “appellate court must sufficiently outline
the procedure the district court is to follow. The chain of intended events should be articulated
with particularity. . . . The language used to limit the remand should be, in effect, unmistakable.”
Id. at 268. “In the absence of an explicit limitation, the remand order is presumptively a general
one.” In re Purdy, 870 F.3d 436, 444 (6th Cir. 2017) (quoting Owner-Operator Indep. Drivers
Assoc. v. Comerica Bank, 562 F. App’x 312, 331 (6th Cir. 2014)).
The language used by the Sixth Circuit in this case dictates a conclusion that the remand
was general, as the court stated only that it reversed and remanded for further proceedings
consistent with its opinion. See Purdy, 870 F.3d at 444 (“We required only that further proceedings
be consistent with our opinion. We therefore conclude that the remand was general . . . .”).
Consistent with that opinion, the defendants can no longer litigate the authorship of Sigh, Cry,
Almost Die or That’s Just Too Much. Otherwise, however, all claims at issue in the Complaint and
Counterclaim remain pending, effectively without limitation. Accord Wright & Miller, 10A Fed.
Prac. & Proc. Civ. § 2712 (4th ed.) (“[T]he denial of summary judgment does not preclude either
party from raising at trial any of the issues dealt with on the motion.”).

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That means both that the plaintiff’s Count II, which the court dismissed as moot, is
reinstated and that the defendants are not barred from asserting the arguments made in their Rule
59(e) motion, which this court declined to consider in that context. The plaintiff now claims that
this court’s finding that those arguments were waived constitutes the “law of the case.” (Doc. No.
64, at 5.) The plaintiff’s citations, however, are inapposite. The Sixth Circuit has “confined the
law-of-the case doctrine to the mandate of the reviewing court’s opinion and the portions of the
opinion incorporated into the mandate.” McKenzie v. BellSouth Telecomms., 219 F.3d 508, 513
(6th Cir. 2000). That means that, following remand, “the trial court may consider those issues not
decided expressly or impliedly by the appellate court or a previous trial court.” Id. (citations
omitted). As set forth above, the remand in this case is general. This court declined to consider the
two arguments the defendants now seek to revive in the context of contesting summary judgment,
since they were not raised before the Rule 59(e) motion. The Sixth Circuit declined to consider
them for the same reason. Consequently, the arguments were never considered on their merits,
either by this court or by the Sixth Circuit. Summary judgment has now been denied, and the
arguments remain available to the defendants. The situation is no different than it would be if,
hypothetically, the defendants had never filed a Rule 59(e) motion, and thus never raised the issues
at all, or if the plaintiff had never filed a motion for summary judgment in the first place. The law
of the case does not bar these arguments. See United States v. McFalls, 675 F.3d 599, 606 (6th Cir.
2012) (“[A] general remand effectively wipes the slate clean.”).
III.

MOTION TO AMEND ANSWER
Invoking Rule 15(a)(2) of the Federal Rules of Civil Procedure, the defendants also seek

to amend their Answer to assert the statute of limitations as an affirmative defense to the plaintiff’s
claims. Specifically, it seems that the defendants wish to claim that the plaintiff’s suit is barred by
the three-year statute of limitations, because Phil Everly “plainly and expressly repudiated Don’s

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claim to sole authorship by, among other things, describing his co-authorship of “Cathy’s Clown”
on the David Frost Show in 1972.” (Doc. No. 63, at 8.) The defendants deny that there has been
undue delay or that the plaintiff will be prejudiced because, they claim, no additional discovery
will be required and the defendant has ample time to tailor his trial strategy, since trial is still more
than three months away. The defendants also assert that the proposed amendment would not be
futile, they are not acting in bad faith, and they have not filed any previous amendments. Finally,
the defendants maintain that Rule 16(b)(4) does not apply, “because there was no deadline set for
amendment of pleadings upon remand.” (Doc. No. 63, at 8 n.7.)
In response, the plaintiff argues that the defendants’ request to amend the pleading must
also be construed as a request to amend the scheduling order, which requires a demonstration of
“good cause.” See Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and
with the judge’s consent.”). He argues that the defendants have made no showing of good cause
in this case and, further, that he would be prejudiced by any such amendment, because the proposed
new defense is “fact-intensive and will require additional discovery and, perhaps, dispositive
motions briefing.” (Doc. No. 64, at 8.) The plaintiff asserts that the prejudice is “compounded by
the fact that Defendants are vague about the scope of their proposed defense.” (Id.) 1 He states that
at least ten new depositions will be required.
Rule 15(a) of the Federal Rules of Civil Procedure governs amending pleadings before
trial. A party may amend a pleading once as a matter of course either within twenty-one days after
serving it or, if the pleading is one to which a responsive pleading is required, within twenty-one

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The plaintiff also states that it is “unclear” whether the defendants “claim that their
defense applies only to Cathy’s Clown or to all of the songs covered by the 1980 release.” Because
the Sixth Circuit affirmed summary judgment to the plaintiff with respect to the other two Subject
Compositions that were originally at issue in this case, it is clear that the defendants’ claim can
only pertain to Cathy’s Clown.

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days after service of a responsive pleading or twenty-one days after service of a motion under Rule
12, whichever is earlier. Fed. R. Civ. P. 15(a)(1). In all other cases, a party may only amend a
pleading by obtaining the opposing party’s written consent or receiving leave of the court. Fed. R.
Civ. P. 15(a)(2).
Where it is requested, the court should “freely” give leave when justice so requires. Foman
v. Davis, 371 U.S. 178, 182 (1962). However, notwithstanding the liberality with which courts
generally are to approach such motions, a motion to amend may be denied where there is “undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance
of the amendment, futility of amendment, etc.” Riverview Health Inst. LLC v. Med. Mut. of Ohio,
601 F.3d 505, 520 (6th Cir. 2010) (quoting Foman, 371 U.S. at 182). “A proposed amendment is
futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing Thiokol Corp. v. Dep’t of
Treasury, 987 F.2d 376, 382–83 (6th Cir. 1993)). “Ordinarily, delay alone, does not justify denial
of leave to amend.” Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002) (citation omitted).
“At some point, however, ‘delay will become “undue,” placing an unwarranted burden on the
court, or will become “prejudicial,” placing an unfair burden on the opposing party.’” Id. (quoting
Adams v. Gould, 739 F.2d 858, 863 (3d Cir. 1984)).
Courts recognize that a request to amend a pleading after a scheduling order’s deadline for
doing so is construed as both a request for leave to amend and for modification of the schedule;
accordingly, the moving party must demonstrate “good cause” for allowing the amendment. Fed.
R. Civ. P. 16(b)(4); see Leary v. Daeschner, 349 F.3d 888, 907 (6th Cir. 2003) (holding that a
party seeking to amend a pleading in contravention of a scheduling order must satisfy both Rule

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15 and Rule 16). Rule 16’s “good cause” standard is “much stricter” than the Rule 15 standard.
Harshaw v. Bethany Christian Servs., No. 1:08-CV-104, 2009 WL 5149925, at *7 (W.D. Mich.
Dec. 15, 2009). “Once the scheduling order’s deadline to amend the [pleading] passes, . . . ‘a
[party] first must show good cause under Rule 16(b) for failure earlier to seek leave to amend’ . . .
‘before a court will [even] consider whether amendment is proper under Rule 15(a).’” Commerce
Benefits Grp., Inc. v. McKesson Corp., 326 F. App’x 369, 376 (6th Cir. 2009) (quoting Leary, 349
F.3d at 909).
The Sixth Circuit has recognized that amendments following the close of discovery “would
create significant prejudice to defendants in having to reopen discovery and prepare a defense for
a claim quite different from the . . . claim that was before the court.” Duggins v. Steak ‘N Shake,
Inc., 195 F.3d 828, 834 (6th Cir. 1999); see also Wade v. Knoxville Utils. Bd., 259 F.3d 452, 459
(6th Cir. 2001) (citing Duggins for the proposition that, “[w]hen amendment is sought at a late
stage in the litigation, there is an increased burden to show justification for failing to move earlier,”
the “late stage” in that case being “after discovery had passed, the dispositive motion deadline had
passed, and a motion for summary judgment had been filed”); Harshaw, 2009 WL 5149925, at
*7–8 (W.D. Mich. Dec. 15, 2009) (recognizing that Rule 15(a)’s liberal standard, alone, would not
support denial of a motion for leave to amend to assert “meritorious limitations defenses” in that
case, but that Rule 16’s “stricter standard” required denial of the motion, where the defendant did
“not even arguably show good cause for missing the [amendment] deadline by more than a year”);
accord Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004) (affirming the denial of a
motion to amend, recognizing that “motions to amend whose timing prejudices the opposing party
by requiring a re-opening of discovery” are “[p]articularly disfavored”).

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The court is not persuaded by the defendants’ claim that remand served to wipe clean the
deadline slate. The Initial Case Management Order (“ICMO”) entered on January 8, 2018,
established a deadline of June 1, 2018 for completion of written discovery and all depositions.
(Doc. No. 10, at 4.) In particular, the ICMO documented the parties’ agreement to expedite the
plaintiff’s deposition “due to his advanced age and in order to preserve his testimony as evidence.”
(Id.) Even prior to that, “all motions to amend” were due no later than March 30, 2018. (Id.)
Certainly, if discovery has yielded information justifying an extension of the motion to amend, the
defendants could have moved at that point to extend the deadline, but they did not do so.
Dispositive motions were due by July 23, 2018. The plaintiff filed his dispositive motion on that
date, positing that the statute of limitations barred the defendants’ claims based on Phil Everly’s
authorship. This tactic should have, at the very least, put the defendants on notice of the possibility
that they might have a defense based on the statute of limitations, but, again, they did not seek at
that time to amend the ICMO or to amend their Answer to assert a statute of limitations defense.
The court ruled on the Motion for Summary Judgment in November 2018. The defendants
arguably had had until then—an additional eight months following the expiration of the deadline
for amending—within which to reconsider their position and seek to amend their Answer. They
did not do so.
Now, rather than offering good cause, the defendants assert that Rule 16 does not even
apply, since there is no deadline for amending pleadings following remand. But that argument is
without merit. There is no post-remand deadline because the deadline expired well prior to remand.
The only “cause” the defendants offer is that it did not occur to them that they might have a statute
of limitations defense until the court pointed out, in a footnote in the Memorandum granting
summary judgment, that the defendants had not raised a statute of limitations defense. That

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footnote, however, was purely informational; it was not intended to signal that any such defense
might (or might not) be warranted.
The court finds that the defendants have failed to offer good cause for seeking to amend
the ICMO this late date. In addition, the court finds that permitting amendment of the Answer at
this juncture would cause prejudice to the plaintiff due to the likelihood of “having to reopen
discovery and prepare a defense for a claim quite different from the . . . claim that was before the
court.” Duggins, 195 F.3d at 834. The prejudice is amplified by the plaintiff’s advanced age and
the approaching trial date.
The court further notes that the proposed amendment would apparently be futile. The
defendants posit only that they seek to assert that Phil “plainly and expressly repudiated Don’s
sole authorship claim by, among other things, describing his co-authorship of Cathy’s Clown on
the David Frost show in 1972.” (Doc. No. 63, at 8.) Up until now, the parties have operated under
the apparently undisputed assumption that Don did not make a sole authorship claim, at least
publicly, until sometime in 1980. Phil’s claim of co-authorship in 1972 would, therefore, have no
effect on the statute of limitations. Alternatively, if the defendants intend to entirely reframe the
narrative thus far pursued, then even more extensive additional discovery would likely be required,
which, again, would result in significant prejudice to the plaintiff and undue delay.
IV.

CONCLUSION AND ORDER
The defendants’ request for a clarification of the scope of the proceedings on remand is

GRANTED, as follows: the remand was general, and the defendants cannot be deemed to have
waived the arguments raised in their Rule 59 motion.

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The defendants’ implicit request to amend the ICMO to extend the deadline for amending
pleadings and their request to amend their Answer to add a statute-of-limitations defense based on
the 1972 David Frost show are DENIED for the reasons stated herein.
It is so ORDERED.

____________________________________
ALETA A. TRAUGER
United States District Judge

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